Harlow v. Jones

UNITED STATES DISTRICT COURT                                              
NORTHERN DISTRICT OF NEW YORK                                             

DARRELL HARLOW,                                                           

                    Petitioner,          9:22-cv-477                 
                                         (ECC/DJS)                   
v.                                                                        

GERALD JONES, Superintendent,                                             

                    Respondent.                                      


Darrell Harlow, Petitioner, Pro se                                        
Michelle Elaine Maerov, Asst. Att’y General, for Respondent               
Hon. Elizabeth C. Coombe, United States District Judge:                   
           MEMORANDUM-DECISION AND ORDER                             
Petitioner Darrell Harlow, a New York State inmate, filed a Petition seeking a writ of 
habeas corpus under 28 U.S.C. § 2254.  Dkt. No. 1.  Respondent answered and filed the appropriate 
state-court records.  Dkt. No. 15.  Petitioner filed a reply.  Dkt. No. 21.  This matter was assigned 
to United States Magistrate Judge Daniel J. Stewart who issued a Report and Recommendation on 
November 21, 2024, recommending that the Petition be denied and dismissed in its entirety, and 
that no certificate of appealability be issued to Petitioner.  Dkt. No. 31.  Magistrate Judge Stewart 
advised the parties that under 28 U.S.C. § 636(b)(1), they had fourteen days within which to file 
written objections to the report, and that the failure to object to the report within fourteen days 
would preclude appellate review.  Dkt. No. 53 at 14.  Petitioner subsequently filed objections to 
the Report-Recommendation.  Dkt. Nos. 36, 39.  For the reasons set forth below, the Report-
Recommendation is adopted in its entirety.                                
I.   STANDARD OF REVIEW                                                   
The  Court  reviews  de  novo  those  portions  of  the  Magistrate  Judge’s  findings  and 
recommendations that have been properly preserved with a specific objection.  Petersen v. Astrue, 
2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper objection is one 

that identifies the specific portions of the [Report-Recommendation] that the objector asserts are 
erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F. Supp. 
2d 290, 296 (E.D.N.Y. 2013) (citation omitted).  Properly raised objections must be “specific and 
clearly aimed at particular findings” in the report. Molefe v. KLM Royal Dutch Airlines, 602 F. 
Supp.  2d  485,  487  (S.D.N.Y.  2009).  “[E]ven  a  pro  se  party’s  objections  to  a  Report  and 
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s 
proposal . . . . ” Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 
25, 2011) (citation omitted). Findings and recommendations as to which there was no properly 
preserved objection are reviewed for clear error.  Molefe, 602 F. Supp. 2d at 487. To the extent a 
party makes “merely perfunctory responses, argued in an attempt to engage the district court in a 

rehashing of the same arguments” set forth in the original submission, the Court will only review 
for clear error. Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) (citations and internal 
quotation marks omitted).                                                 
II.  DISCUSSION                                                           
On April 26, 2018, Petitioner was convicted, following a jury trial, of criminal possession 
of a weapon in the second degree and reckless endangerment in the second degree.  Dkt. No. 1 at 
1; TT. at 634.1  Petitioner was sentenced to a term of imprisonment of nine years with five years 


1 Citations to the Petition, Dkt. No. 1, refer to pagination generated by the Court’s CM/ECF 
system.  Citations to the state court record (SR.), trial transcript (TT.), and sentencing transcript 
(ST.), Dkt. No. 15, refer to pagination provided by Respondent.           
post-release  supervision  for  criminal  possession  of  a  weapon  and  one  year  for  reckless 
endangerment, to be served concurrently.  Dkt. No. 1 at 1; ST. at 16.  Petitioner was also found in 
contempt of court for failing to appear while released on bail and sentenced to an additional thirty 
days of imprisonment.  SR. at 275, ST. at 18. The Appellate Division, Fourth Department, affirmed 

Petitioner’s conviction on June 17, 2021, and the Court of Appeals denied leave to appeal on 
September 27, 2021.  People v. Harlow, 195 A.D.3d 1505, 1506 (4th Dep’t 2021), lv. denied, 37 
N.Y.3d 1027.                                                              
On July 21, 2021, Petitioner filed a pro se CPL § 440.10 motion to vacate judgment.  Dkt. 
No. 1 at 4; SR. at 425-26.  The Onondaga County Supreme Court denied Petitioner’s CPL § 440.10 
motion on November 3, 2021.  SR. at 544.  On November 16, 2021, Petitioner requested 
permission to appeal to the New York Appellate Division, Fourth Department pursuant to CPL § 
460.15. Id. at 545.  On April 19, 2022, the Appellate Division denied Petitioner’s CPL § 460.15 
motion to appeal.  Id. at 562.                                            
Petitioner subsequently filed a pro se coram nobis motion alleging he was denied effective 

assistance of appellate counsel.  SR. at 564.  The Appellate Division denied the motion on April 
4, 2022.  Id. at 590.                                                     
The Petition presently before the Court asserts eleven grounds for habeas corpus relief 
under 28 U.S.C. § 2254.  Dkt. No. 1.  Specifically, Petitioner argues that (1) there was insufficient 
probable cause for his arrest; (2) there was insufficient probable cause for the search warrant of 
his vehicle and the seizure of his vehicle and sweatshirt; (3) police testimony constituted hearsay; 
(4) he was denied the opportunity to confront his accusers; (5) the court’s jury instructions on gun 
possession raised the possibility that he was convicted of an unindicted offense; (6) the guilty 
verdict was against the weight of the evidence; (7) the prosecution withheld Brady material; (8) he 
received ineffective assistance of trial counsel; (9) he received ineffective assistance of appellate 
counsel; (10) he was illegally detained; and (11) the jail calls were improperly admitted into 
evidence.  Dkt. No. 1 at 6-14.  After carefully considering each of these claims, Magistrate Judge 
Stewart recommended that the Petition be denied.  Dkt. No. 31.  The Court assumes familiarity 

with the Report-Recommendation and the facts underlying the Petition as summarized in the 
Report-Recommendation, and considers Petitioner’s objections in the context of each asserted 
ground for relief.                                                        
A.   Evidentiary Rulings                                             
Petitioner challenges purported “hearsay” testimony from various police officers at his trial 
(1) narrating video taken from closed-circuit cameras depicting events they did not witness, and 
drawing conclusions about what they saw on the videos, and (2) indicating that they received 
information in the course of their investigation leading them to identify Petitioner as a suspect.  
Dkt. No. 39 at 3, 5-6.  Magistrate Judge Stewart rejected Petitioner’s habeas claims based on 
evidentiary challenges, but limited his analysis to information that came in via the 911 call, which 

Petitioner contends is not at issue here.  Dkt. Nos. 31 at 11-14, 39 at 5-6.  Based on Petitioner’s 
objections, the Court reviews Magistrate Judge Stewart’s disposition of these claims de novo.    
During the course of the underlying trial, defense counsel became aware that the prosecutor 
intended  to  introduce  as  evidence  surveillance  camera  video  recordings.    Defense  counsel 
stipulated to their admission, but objected to any officer testifying as to what they viewed on those 
videos when they watched them, or any interpretation of what the videos showed.  TT. at 13-15.  
Defense counsel further argued that what the videos showed was a question of fact for the jury to 
address and that they could draw whatever evidentiary inferences they wished from the videos, but 
it would be improper bolstering for the officers to explain what they saw in the same videos.  Id.  
In response, the prosecutor argued that it would be improper to preclude his witnesses from 
providing a narrative of what they observed in the videos.  Id.  The trial judge ultimately overruled 
defense counsel’s objection and permitted the officer-witnesses to testify about what they observed 
on the surveillance videos, which included their opinions that Petitioner and his vehicle were 

depicted in the videos.  Id. at 330-33, 474-77.  The trial judge gave the following limiting 
instruction to the jury with respect to the police testimony regarding the content of videos that 
were admitted into evidence: “As with all evidence, you are the finders of fact.  It is for you to 
determine what is depicted in those videos as the finders of fact.”  Id. at 606.   
Defense counsel also objected to testimony elicited by officers regarding what they learned 
from others about Petitioner’s involvement in the shooting as inadmissible hearsay.  TT. at 306-
09.  The trial judge agreed that questions concerning “what other people said” to these officers 
would be sustained upon objection, but that the officers could testify to information that prompted 
their investigation and what actions they took based on that information.  Id. at 310-22.  The trial 
court agreed to, and did, issue a limiting instruction that the officer’s testimony about what they 

learned in their investigation was evidence not admitted for the truth of the matter asserted “but 
rather to complete the narrative for what the officers did in response to the call.”  Id.  606.  Thus, 
at trial the officers were permitted to testify that they came to learn “that the possible suspect 
vehicle in the incident was a light green BMW SUV,” and that Petitioner had been determined to 
be a suspect.  Id. at 328, 385-86.  Defense counsel did not object to the prosecutor’s rephrased 
questions concerning information the officers learned in the course of their investigation. 
On appeal, the Appellate Division found that the trial court “improperly allowed a police 
officer to identify [Petitioner] in a surveillance video.”  Harlow, 195 A.D.3d at 1507. The 
Appellate Division explained that “there was no basis for concluding that the [officer] was more 
likely than the jury to correctly determine whether . . . defendant was depicted in the video.  Id. 
(citations omitted).  The court further noted that the officer was not familiar with defendant, and 
there was no evidence showing that defendant had changed his appearance before trial.  Id. 
(citations omitted).  The Appellate Division also found that the trial court erred in permitting the 

prosecutor to elicit testimony from the officers regarding what they learned from others about 
Petitioner’s involvement in the shooting.  Id.  The court determined that the “challenged testimony 
was hearsay that was not admissible under any cognizable exception to the hearsay rule;” and that 
“[t]here is . . . no general exception to the hearsay rule for testimony relating to background 
conduct,  information,  or  explanation  of  a  subject  matter  or  event.”  Id.  (citations  omitted).  
Nevertheless, the trial court concluded that any error in admitting the challenged testimony “was 
harmless in light of the otherwise overwhelming evidence of defendant’s guilt and because there 
was  no  significant  probability  that  the  error  in  admitting  the  testimony  contributed  to  the 
conviction.”  Id. (citation omitted).                                     
Federal habeas review of a state court’s evidentiary ruling is limited.  See Perez v. Greiner, 

No. 01 Civ. 5522, 2002 WL 31132872, at *5 (S.D.N.Y. Sept. 25, 2002) (citing Estelle v. McGuire, 
502 U.S. 62, 67 (1991)) (“The Supreme Court has held that federal habeas courts will not review 
evidentiary rulings made by a state court unless a conviction resulting from those rulings violates 
the Constitution, laws, or treaties of the United States.”).  Here, the Appellate Division considered 
Plaintiff’s contentions on the merits, concluding that it was error to allow the officers to testify 
about their observations from the video, but that the error was harmless.  Although a harmlessness 
determination concerning evidence erroneously admitted in violation of state evidentiary law is a 
state law question not subject to federal habeas review under § 2254, a district court may “review 
an error of state evidentiary law to assess whether the error deprived the petitioner of his due 
process right to a ‘fundamentally fair trial.’” Freeman v. Kadien, 684 F.3d 30, 34–35 (2d Cir. 
2012)  (citations  omitted)  (affirming  the  denial  of  the  petition  where  the  harmlessness 
determination regarding an underlying error of state law “was itself a decision of state law that 
cannot form the basis for federal habeas relief”); see also Zarvela v. Artuz, 364 F.3d 415, 418 (2d 

Cir. 2004) (citation omitted) (“Even erroneous evidentiary rulings warrant a writ of habeas corpus 
only where the petitioner ‘can show that the error deprived [him] of a fundamentally fair trial.’”). 
To decide whether the erroneous admission of the evidence is “so extremely unfair that its 
admission violates fundamental conceptions of justice” and thus violates due process, the district 
court examines “whether the erroneously admitted evidence, viewed objectively in light of the 
entire record before the jury, was sufficiently material to provide the basis for conviction or to 
remove a reasonable doubt that would have existed on the record without it.” Borgella v. Bell, No. 
18-cv-2026, 2019 WL 2527293, at *6 (E.D.N.Y. June 19, 2019) (quoting Dunnigan v. Keane, 137 
F.3d 117, 125 (2d Cir. 1998) and Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)), appeal 
dismissed (Oct. 16, 2019).                                                

At the outset, it is not at all clear that the admission of testimony concerning information 
obtained  by  the  officers  leading  them  to  identify  Petitioner  as  a  suspect  was  an  error  of 
constitutional proportion.  Such testimony “is typical of the accepted method for explaining how, 
as part of an investigation, a suspect came under suspicion without disclosing the hearsay that 
often forms a part of that investigation and leads to the suspect.” Washington v. Noeth, No. 17-cv-
0004, 2021 WL 3173273, at *4 (E.D.N.Y. July 27, 2021) (citing Burgess v. Sheahan, No. 16-cv-
1461, 2017 WL 9325814, at *12 (S.D.N.Y. Sept. 8, 2017)), report and recommendation adopted, 
2018 WL 2186409 (S.D.N.Y. May 11, 2018)).                                 
Even assuming that the trial court did err in admitting the aforementioned testimony, it was 
not so material as to have deprived petitioner of his constitutional right to a fundamentally fair 
trial.  As Magistrate Judge Stewart set forth in his Report-Recommendation, there was sufficient 
evidence in the record for the jury’s guilty verdict, including the surveillance video footage, the 

discovery of the subject firearm hidden in the rear tire compartment of the vehicle Petitioner 
brought to the police station, the bullet casing found concealed in a bedsheet in the front seat of 
that vehicle, and Petitioner’s jail calls.  Dkt. No. 31 at 13-14.  Moreover, the trial court provided 
limiting instructions to the jury, effectively directing the jurors to draw their own conclusions about 
what and who appears on the video based on their viewing of the evidence, as opposed to relying 
on the officer’s opinion testimony.  Accordingly, the state court’s harmless error decision was not 
contrary to, or an unreasonable application of, clearly established Federal law, and habeas relief is 
not warranted.                                                            
B.   Confrontation Clause                                            
Petitioner argues that his confrontation rights were violated by the admission of the 

officers’ testimony regarding what they learned from unnamed individuals—who did not testify at 
trial—about Petitioner’s involvement in the shooting.  Dkt. No. 39 at 1-5.  Magistrate Judge 
Stewart found that Plaintiff’s rights under the Confrontation Clause were not violated as to the 
“unidentified 911 caller” who did not testify at trial, because the 911 caller’s statements were given 
in the context of an ongoing emergency and were thus non-testimonial.  Dkt. No. 31 at 15-16.  
However, Petitioner contends that his challenge is not to the 911 caller’s statements, but “against 
the two anonymous males who chose to remain anonymous in [the officer’s] initial report.”  Dkt. 
No. 39 at 2.  Based on Petitioner’s objections, the Court reviews Magistrate Judge Stewart’s 
disposition of this claim de novo.                                        
Attached to Petitioner’s objections is a copy of what appears to be a portion of a police 
report, narrating statements from two unidentified sources that they (1) heard two shots and 
witnessed a green BMW SUV fleeing south on Cannon Street, (2) observed a light green BMW 
SUV with no window tint traveling south of Cannon Street, (3) observed a “light skin black male” 

fire two shots using a handgun from the driver’s window, and (4) identified Petitioner as the “only 
person” known with a vehicle as described, with a tan interior.  Dkt. No. 39 at 13.  This report was 
not admitted as trial evidence, nor did the testifying officers identify to the jury how or from whom 
they learned this information during the course of their investigation.   
The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal 
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against 
him.” U.S. Const. amend. VI; see Pointer v. Texas, 380 U.S. 400, 403 (1965).  In Crawford v. 
Washington, the Supreme Court held that the Confrontation Clause bars “admission of [prior] 
testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, 
and the defendant had had a prior opportunity for cross-examination.” 541 U.S. 36, 68 (2004); see 

also Washington v. Griffin, 876 F.3d 395, 404 (2d Cir. 2017). “Although the Supreme Court 
declined to spell out a comprehensive definition of ‘testimonial,’ it made clear that [w]hatever else 
the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand 
jury, or at a former trial; and to police interrogations.” DeJesus v. Perez, 813 F. App’x 631, 633 
(2d Cir. 2020) (cleaned up) (quoting Crawford, 541 U.S. at 68). “Furthermore, the Confrontation 
Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth 
of the matter asserted.’” Id. (quoting Crawford, 541 U.S. at 59 n. 9); see also Tennessee v. Street, 
471 U.S. 409, 414 (1985) (holding that non-hearsay admissions do not raise “Confrontation Clause 
concerns”).                                                               
In Dejesus v. Perez, the Second Circuit addressed similar facts under the Confrontation 
Clause.  Dejesus sought habeas relief stemming from his state conviction by a jury of murder in 
the second degree.  DeJesus v. Perez, 813 F. App’x 631, 632 (2d Cir. 2020).  Before trial began, 
the state court denied the prosecution’s request to admit testimony from a member of the victim’s 

family concerning a telephone call that was received the day of the shooting.   Id. at 632.  In that 
call, an anonymous person said that “the shooter’s name is Joshua” and provided his address.  Id. 
The family member relayed this information to the police at approximately 4:15 p.m. on the day 
of the shooting.  The court did not permit the prosecution to reference the phone call, but allowed 
the prosecution to ask the detectives if they had a suspect in mind based on their preliminary 
investigation.  Id. On direct examination, the detectives revealed that they identified DeJesus as a 
suspect.  Id.                                                             
The Second Circuit rejected Dejesus’ claim that habeas relief was warranted due to the 
violation of his right to confrontation by the detectives’ testimony.  Dejesus, 813 F. App’x at 634.  
The Second Circuit explained that, “as it relates to Confrontation Clause claims involving an 

implicit accusation by a non-testifying witness, ‘[t]he relevant question is whether the way the 
prosecutor solicited the testimony made the source and content of the conversation clear.’” Id. at 
635 (quoting Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002)).  In applying this inquiry to Dejesus’s 
claim, the Second Circuit noted that “neither the source of the information nor its specific content 
was ever revealed to the jury during questioning by the prosecutor; rather, the jury only learned 
that the police suspected DeJesus as the murderer” prior to a witness interview and identification 
of DeJesus.  Id.  The Second Circuit further noted that in the context of indirect accusations such 
as that asserted against DeJesus, “[n]o Supreme Court case has held . . .  that the Confrontation 
Clause is violated where neither the source nor content of the information is revealed by the 
prosecution to the jury.”  Id.  Accordingly, the Court concluded that the facts did not permit habeas 
relief.                                                                   
The facts in Dejesus are analogous to the instant Petition.  The officers here did not 
reference the source or content of the information they received from the anonymous individuals 

referenced in the police report, but limited their testimony to the fact that there came a point in 
their investigation when they considered Petitioner to be a suspect.  The trial court also issued a 
limiting instruction as to testimony concerning what the officers learned in their investigation.  TT. 
at 606. Because these facts present “too vague an accusation to constitute a Confrontation Clause 
violation within the scope of the Supreme Court’s jurisprudence,” Petitioner is not entitled to 
habeas relief.  Dejesus, 813 F. App’x at 636.                             
C.   Probable Cause                                                  
Petitioner objects to Magistrate Judge Stewart’s recommendation to dismiss his habeas 
claim based on insufficient probable cause.  Dkt. No. 39 at 7.  Petitioner contends that there was 
“no corrective procedure to address [his Fourth] Amendment claims,” and that he has shown an 

“unconscionable breakdown in that process.”  Id. at 7, 8.  In the Report-Recommendation, 
Magistrate Judge Stewart determined that Petitioner’s claims of insufficient probable cause are not 
cognizable, and therefore this Court cannot provide habeas relief, because New York has adequate 
processes for litigating probable cause claims, and Petitioner availed himself of those processes.  
Dkt. No. 31 at 8-11.                                                      
Upon de novo review, the Court agrees that Plaintiff is not entitled to habeas relief on this 
basis.  Federal habeas relief for alleged Fourth Amendment violations is only available “(a) if the 
state has provided no corrective procedures at all to redress the alleged [F]ourth [A]mendment 
violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded 
from using that mechanism because of an unconscionable breakdown in the underlying process.” 
Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).  As to the former, the Second Circuit has held 
that  “federal courts have approved New York’s procedure for litigating Fourth Amendment claims 
. . . as being facially adequate” under New York Criminal Procedure Law §710.10. Capellan v. 

Riley, 975 F.2d at 70 n. 1.  There is no dispute that Petitioner availed himself of this process at 
multiple stages of his underlying litigation.  Dkt. No. 1 at 9; see Dkt. No. 31 at 10-11.  “[O]nce it 
is established that a petitioner has had an opportunity to litigate [their] Fourth Amendment claim 
(whether or not [they] took advantage of the state’s procedure), the court’s denial of the claim is a 
conclusive determination that the claim will never present a valid basis for federal habeas relief.” 
Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002).                     
Petitioner’s alternative claim that there was an unconscionable breakdown in the process 
is equally meritless.  The Second Circuit clarified that the inquiry into whether there was an 
unconscionable  breakdown  in  a  state’s  corrective  procedures  to  address  alleged  Fourth 
Amendment violations is based on “the existence and application of the corrective processes 

themselves rather than on the outcome resulting from the application of adequate state court 
corrective procedures.” Singh v. Miller, 104 F. App’x 770, 772 (2d Cir. 2004). More specifically, 
“[a]n unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry 
into the petitioner’s claims.” Valtin v. Hollins, 248 F. Supp. 2d 311, 317 (S.D.N.Y. 2003).  
Petitioner has failed to make such a showing here.  Accordingly, Petitioner is not entitled to habeas 
relief on this basis.                                                     
D.  Ineffective Assistance of Trial Counsel                          
Petitioner objects to the portion of Magistrate Judge Stewart’s Report-Recommendation 
denying habeas relief based on the ineffective assistance of trial counsel.  Dkt. No. 39 at 9-10.  
Petitioners’ only meaningful objections in this regard are primarily a reiteration of the allegations 
and information already provided in papers submitted to Magistrate Judge Stewart, which triggers 
review for clear error.  Having reviewed these portions of the objections for clear error, and finding 
none, the Court adopts Magistrate Judge Stewart’s Report-Recommendation as to the ineffective 
assistance of counsel claims. 
 The Court has reviewed the remainder of the Report-Recommendation for clear error. 
Having  found  none,  the  Court  adopts  the  remainder  of Magistrate  Judge  Stewart’s  Report- 
Recommendation in its entirety. 
 For these reasons, it is hereby 
 ORDERED that Magistrate Judge Stewart’s Report and Recommendation, Dkt. No. 31,  is 
ADOPTED in  its entirety; and it is further 
 ORDERED that the Petition, Dkt. No. 1, is DENIED and DISMISSED; and it is further 
 ORDERED that no certificate of appealability pursuant to 28 U.S.C. § 2253(c) shall issue. 
Any request for a certificate of appealability must be addressed to the Court of Appeals (Fed. R. 
App. P. 22(b)); and it is further 
 ORDERED that the Clerk serve a copy of this Order on the parties in accordance with the 
Local Rules. 
IT IS SO ORDERED. 
Dated: September 30, 2025 
                                 bien 
                                  Elizabeth C. Coombe 
                                  U.S. District Judge 

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